December

Lawyers Journal

The purpose-driven life of Judge Nancy Gertner

By Andrea R. Barter, Esq.

December 2005

No one could ever say that U.S. District Judge Nancy Gertner just phones it in.

Operating on just five to six hours of sleep a night, this woman is always on.

When asked what makes her tick, Gertner explained, "There's a joy in being able to take a complex situation and unpack itÉ to see the path towards the legal solutionÉ when I figure it out, a way to advance the law, it's a wonderful feeling of resolution. That, and I'm mad with power."

"Just kidding," she added.

Passion
An admitted workaholic, Gertner has always brought a passion to her work, both as a litigator and as a federal judge.

"Something burns in her soul that detests injustice, hypocrisy and cruelty," said former partner Harvey Silverglate, Good & Cormier.

"She has a desire to do justice, to make the judicial system work as fairly and responsibly to all our people as she can... she is in love with the concept of equal justice under the law and would do anything appropriate to achieve it," said William Young, chief judge of the U.S. District Court in Boston.

In a bit of modern-day alchemy, growing up on the Lower East Side of Manhattan among people of modest means and becoming active in the social movements of the '60s led to Gertner's sympathy for those who are struggling. "I'm passionate about fairness and equality and have always been," said Gertner. "I continue to believe it isn't a bad thing to begin your life as a critic, to take the things around you and ask, 'Why is it necessary to do it this way, why not another way, what is the impact on the people we serve?'"

Partners recognized her dedication, skill
Gertner's partners recognized her passion for the law early on and gave her ample opportunity to demonstrate her skill.

After clerking for the Hon. Luther M. Swygert, U.S. Court of Appeals, 7th Circuit, after graduating from Yale, Gertner joined Silverglate in his practice. Within a year, Gertner made the meteoric rise to partner.

When the firm of Silverglate, Gertner, Fine & Good disbanded in 1990, Thomas E. Dwyer Jr. pounced. Inadvertently, perhaps, but he pounced.

When Gertner's name came up while talking to a mutual acquaintance, Dwyer commented that "she's so good, if she ever left the firm she's with, I'd give her a job in one day.

"It was my way of paying a compliment," said Dwyer. Gertner found out.

"The next day she calls me and says, 'Dwyer, put your money where your mouth is,'" he recalled. They had lunch the next day and joined forces by the end of the month, thereby creating the firm of Dwyer, Collora & Gertner.

"We had a great time, great fun. We worked hard, separately and together. She's a fabulous partner, fabulous lawyer and a fabulous friend," said Dwyer.

"I think she has extraordinary enthusiasm about life and about the law and she was never happier than when she was helping the have-nots in society. She was far more comfortable helping the have-nots than the haves. She would do the same good job, but you knew where she was," he added.

But Young stressed, "I'm here to tell you passionately that she favors neither side, she adheres to the law."

According to Vuono, "Judge Gertner was a formidable adversaryÉ What struck me the most about her as a litigator was the incredible passion she had for her cases. In my view, more than any of her other qualities, it was her unwavering commitment to her client that set her apart from other attorneys."

Committed to causes in face of adversity
Gertner has long had a reputation for strength in adverse situations.

When Gertner started working in private practice in the early '70s, female attorneys were often consigned to divorce practice. Despite a strong divorce client portfolio, Gertner was committed to developing her criminal defense practice and a women's rights civil rights practice.

"She actually made a decision that she didn't want to be relegated to doing divorce work and knew that because she was good at it, there was temptation," said Silverglate. Anticipating that divorce work would deter her from her criminal defense work and would crowd out her women's rights work, she stopped taking divorce cases.

"It was several months before the criminal cases started coming in in any substantial degree. Within a year, she had a bustling criminal practice. That shows courage to drop that which is easy and profitable to venture into what was then an unknown field for women," said Silverglate.

Silverglate recalled his first memory of "Nancy Gertner, criminal lawyer."

According to Silverglate, while struggling to establish herself as a criminal lawyer, one of Gertner's first criminal cases was in East Boston Criminal Court before an old-fashioned, conservative judge. He had never had a woman lawyer before him representing a criminal defendant. As Gertner "got up in front of judge and began to address the court, the judge interrupted her, looked her straight in the eye, and said with contempt, 'Do you want me to address you as Miss Gertner, or Mrs. Gertner, or,' with even more contempt, 'Ms. Gertner?' The appellation 'Ms.' was very new at the time. Nancy looked him straight back in the eye and responded, 'Counselor will do.' Everybody in court froze, wondering if the judge would have the nerve to hold her in contempt. She stood her ground, he retreated, and treated her civilly, even if not enthusiastically, for the rest of the trial," said Silverglate.

Gertner explained that back then, women attorneys "all had a ready repartee. We had to figure out as a lawyer how to respond in a way that could be funny and dignified, but could make the point. We felt ourselves to be emissaries, showing women lawyers could fight for themselves and were aware of the implications," said Gertner.

Gertner can also claim bragging rights to standing up to the U.S. government while she was a criminal defense lawyer. "The government had an informant that came to an attorney-client meeting and reported back to the U.S. attorney what was going on. I was subpoenaed to testify before a grand jury to tell about the amount of money my client had paid for my services. An effort to get at the profits of crime and what they got at, or attempted to get at, was the attorney-client relationship and finally I was sued: the famous case of United States v. Gertner, in which I was sued in order to get me to disclose the identity of a client who had given me cash. The cash had been reported to the IRS. The amount of it - the appropriate documents had been filed. I simply didn't think it was right to require a lawyer to tell something that would obviously help the government prosecute the client."

Ultimately, the district court concluded that the audit of the firm was a pretext for the anticipated investigation of the client and it refused to enforce the summons.

Gertner continues to challenge the status quo as a federal judge. Most recently, in the case of United States v. Green, Gertner made two controversial rulings designed to redress what she perceived as shortcomings in the federal jury system, particularly in death penalty cases.

In the first instance, Gertner ruled that the practice of having a single jury consider guilt and punishment in death penalty cases tended to result in a jury that was more prone to convict.

Gertner, citing studies presented by the defense, concluded that so-called "death-qualified" juries are more likely to convict because people who admit they could never vote for death are disqualified from serving. Crafting a thoughtful solution, Gertner proposed two separate juries, one to decide guilt and another to decide punishment.

Secondly, Gertner had ruled that the underrepresentation of minorities on federal juries in Massachusetts is a violation of federal law. Gertner then ordered court administrators to send additional summonses to certain zip codes when mailings are returned as undeliverable. The move was designed to increase the likelihood that black jurors will be in the jury pool for the trial.

"This court cannot - yet again - return to business as usual and cast a blind eye to real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates," wrote Gertner.

The 1st Circuit Court of Appeals overturned her rulings on both issues.

Down time is still up time
As Gertner says, "The day job takes a lot of time and the night job is the kids." However, she still manages to pursue several hobbies, including kayaking, hiking, biking and astronomy. "I love astronomy. We had a lake house in New Hampshire. The first time I saw the sky over the lake, I bought a telescope... Maybe it comes from growing up in New York and never seeing the sky," said Gertner.

She also finds cooking relaxing and can often be found making a roast at 1 a.m. But attorneys appearing before her shouldn't let down their guard. "They have to realize I'm going to read everything, even if it's after the pot roast at 1 a.m.," she added.

Gertner offers attorneys some classic advice: be prepared, know your case. But then she went on to say, "The way you learn a foreign language, when you know it so well it is seamless, that's the level of preparation I'm talking about. Know it so well you don't have to look at notes. The attorney should be able to answer any questions, be able to go from detail to abstraction. Those are the best lawyers, not the ones who cram 10 minutes before coming in the door."